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Lack of procedure deemed unfair during dismissal

The Fair Work Commission (“the FWC”) recently found that an employee’s dismissal was unfair due to his employer’s non-existent procedures and spiteful actions leading up to his termination.

The facts
The employee had been working at the puppy farm for approximately two years with no issues and a perfect employment record. That was, until he was terminated 3 months after a new manager joined the company. The manager relentlessly sent emails to the employee highlighting areas of poor performance and questioning his skills and knowledge in areas outside of his job description. The manager even changed his roster due to being under 25 and unable to drive the company car, something completely out of his control.

The FWC stated that the actions of the manager were “capricious, fanciful, spiteful or prejudiced.” The FWC took a strong stance against the poor managerial actions of the employer and her poor behaviour toward the employee.

What was the decision?
It was held that the termination was unfair because of the absence of valid reason and the absence of poor performance and conduct warnings. The manager failed to provide any evidence to demonstrate that the employee was not performing his job to an acceptable standard. The company was ordered to pay the employee monetary compensation, which the court noted would have been a lot higher had the employee not found work so quickly.

It was also held that the manager was unprofessional in her dealings with the employee and the tone and specifically, the contents of her emails were not appropriate to convey dissatisfaction with performance.

What do you need to know?
Having adequate and legally compliant processes and procedures in place are a crucial aspect to running a business. It is vitally important that employers follow fair and reasonable methods when dealing with employee performance issues and their potential termination.

The FWC stressed to employers that the cost of defending an unfair dismissal claim can be tens of thousands of dollars and damaging to not only the financial position of the business but also to its reputation. However, the FWC noted that preventing an unfair dismissal claim is a significantly lesser costs by simply implementing strong policies and procedures. By executing a legally compliant termination policy and procedure, businesses can be adequately protected against potential claims. This also ensures that all managers/senior staff are aware of appropriate behaviour and treatment of staff.

Having inadequate policies and procedures opens up your business to significant risk now and into the future. Cases such as this one, highlights the FWC’s intolerance for poor treatment of employees both during their employment and the termination process.

How can we help?
At Sinclair + May we understand the importance of strong workplace policies and procedures to ensure compliance with relevant workplace laws. Should you feel uncertain about the legal strength of your current termination processes, we would be happy to work with you to implement a more effective solution for your business. We have extensive experience drafting policies and constructing processes so that businesses can run efficiently without the burden of risk.

Should you have any questions or if you would like a copy of our termination & redundancy fact sheet, please feel free to contact us on 03 9111 5660 or email jessica@sinclairmay.com.au

This is general advice only. Liability limited by a scheme approved under Professional Standards Legislation. 

Published Sep 11, 2018